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Lord Harris of Greenwich: My Lords, I thank the noble Lord for what he has just said. Will he recognise that there are many others in the House who take the view that it is essential to have a second day for this debate? With great respect to him, it would be absurd for us to attempt to have a one-day debate when in fact 79 people have already put down their names and that almost certainly a great many more will do so before the end of the week.

Access to Justice Bill [H.L.]

3.7 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 13 [Advice and assistance]:

Lord Thomas of Gresford moved Amendment No. 97:

Page 9, line 27, leave out from beginning to ("or").

The noble Lord said: My Lords, these amendments are grouped with others. Their purpose is to remove from the Bill the provisions which grant to the legal services commission the ability to provide advice, assistance and representation through salaried lawyers in the commission's own employment within the criminal defence service. I find it somewhat ironic that after a full day on Report on the community legal service in which the virtues of competition, conditional fee agreements, exclusive contracted services, lawyers in civil actions taking a risk like any other business--all the virtues of privatisation--were lauded to the skies, we now turn, in considering the criminal defence service, to the virtues of nationalisation--replacing the independence of individual lawyers chosen by the client in competition with others and answerable only to the

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client and to the court--with a salaried employee of the state assigned to defend a person in jeopardy of his liberty.

On the third day of the Committee stage we spent two hours discussing the matter in terms of high principle--not least in the contributions of the noble Baronesses, Lady Mallalieu and Lady Kennedy, and my noble friend Lord Hutchinson. I myself relied on the stirring words of the Chief Justice of Australia, the honourable Sir Gerard Brennan. The reply of the noble and learned Lord the Lord Chancellor was: first, that it was an insult to the ethics of a group of people--which is not yet in existence--to assert that they could not be independent; secondly, that the choice between the independent practitioner and the salaried employee will be maintained; thirdly, that there might be a gap in the provision which a salaried defender service could fill; and, finally, that, having regard to his budget, salaried defenders might afford a useful benchmark against private practitioners in terms of quality and cost--that is to say, that his proposals will pull down the cost of defence services. In none of those matters referred to by the noble and learned Lord do I find the argument of principle fully addressed. We spent some two hours on that topic.

I now turn to the practical aspects of the proposal to see whether it will work. Article 6 the European convention guarantees the right to a fair trial in both civil and criminal proceedings. The concept of a fair trial contains many elements. At the core is the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Also contained in Article 6 is the right to defend oneself in person or through legal assistance, and to call witnesses.

However, as was said by the Supreme Court of the United States, mere access to the courthouse doors does not by itself assure the proper functioning of the adversary process. That court said that a criminal trial is fundamentally unfair if the state proceeds against a defendant without making certain that he has access to the raw materials integral to the building of an effective defence. Thus the Supreme Court has often reaffirmed that fundamental fairness entitles legally aided defendants to an adequate opportunity to present their claims fairly within the adversary system. To implement this principle the Supreme Court has focused on identifying the basic tools of an adequate defence or appeal and has required that such tools be provided to those defendants who cannot afford to pay for them.

The important lesson that one learns from the Supreme Court of the United States is that a state defence service in this country must provide not merely the advocate to appear in court but also the back-up team. The issue that has to be addressed is the cost to the public purse of the administration and the expense of the whole team. At present, wherever in the country a person is arrested there is available in every police station a solicitor of his own choosing to advise him. That solicitor will have his own back-up staff of legal executives and secretarial and other assistance in his own office. He will also have the physical resources to carry out the necessary investigations, the interviewing

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of witnesses, the instruction of experts--pathologists, psychiatrists, fingerprint experts and scientists specialising in fibre evidence or DNA and so forth. He must obtain the sanction of the court before he can incur such expense, whether from the court itself, the administrative staff or the Crown Court in a serious case. The independent solicitor, if he so desires, has the choice of independent counsel to act for his client in an appropriate case. He can match the level and breadth of experience of the advocate to the case before him.

A nationalised defence service will require the setting up of a central administrative office and regional offices. If the footprint of that service is to extend to the whole of England and Wales and is to cover every police station where interrogation may take place; every magistrates' court and Crown Court, clearly those regional offices of the state defence service will be numerous. If the CPS is any guide, it will require an office for each Crown Court area with the equivalent of the proposed CPS district attorney to oversee the region.

I always return to my home territory of North Wales in order to see how things work in a rural area. In North Wales the CPS employs a back-up team of about 1.5 personnel for every qualified advocate. The whole of the investigative arm of the CPS is covered by the North Wales police. They not only provide the witnesses, but they also ensure that they get to court. I expect that a state criminal defence service will require a ratio of three staff to one advocate in order to provide a comprehensive service.

Is it to be supposed for a moment that with this nationwide and expensive framework in place, with a central administrative office, regional and Crown Court offices, an accused person will for long be able to say "No, I do not want that service. I want my own solicitor to act"? If choice is permitted to continue, then the investment of so much national resources in the criminal defence service in providing the back-up team and the support staff is an enormous commercial gamble. If all defendants choose not to use the state defence service it will have nothing to do and the whole framework will be useless.

What about the workload of such a service? The American Bar Association states in Standards for Criminal Justice published in 1980,

    "Neither defender organizations nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Whenever defender organizations or assigned counsel determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations or assigned counsel must take such steps as may be appropriate to reduce their pending or projected workloads".

The American Bar Association has said that there can be no overloading of a criminal defence service and that only an appropriate amount of work can be undertaken. If the criminal defence service is like the CPS in this country, it will be a unionised body with fixed hours (nine to five), with a salaried employee who, unlike the independent barrister or solicitor, has no need to move on to the next case to improve his own income. He will

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be entitled--and no doubt will do so--to prepare his cases not in the evenings or at weekends, as we all do, but during days set aside out of court. In addition, he will require time for training and for updating, time that independent practitioners take out of their daily routine.

The first casualty of such a system in order to save costs will be independent specialist reports. It is so tempting and attractive to ask, "If the pathologist who is instructed by the police comes to a professional conclusion and he is a witness who is not there as a party to the cause but to assist the court, why should the defence have a pathologist? Why should there be more than one scientist or one psychiatrist or one expert in finger printing or in DNA?" Yet when one considers the history of miscarriages of justice in this country, one sees it is precisely in those areas that miscarriages arise due to scientific inadequacies. One thinks of the Judith Ward case and the Birmingham Six case. I know of a man who was imprisoned for 14 years due to a miscarriage of justice when it was ultimately discovered that the scientist who had been responsible for his conviction had faked his findings.

The noble and learned Lord, Lord Archer of Sandwell, referred to the report of Messrs. McConville and Mirsky in 1980 and queried how far things had changed since then in the United States. The Department of Justice in the United States produced reports in 1986 which covered 777 defender programmes in all of the 50 states of the Union and involved public defender systems, contract lawyers and assigned counsel. Revealingly, one county in Arizona which awarded contracts to the lowest bidder was found to violate the 5th and 6th Amendments of the United States Constitution because it did not take into account the time an attorney spent in representing his clients.

Importantly, the contract system in Arizona did not provide for support costs such as investigators. It did not consider the competence or experience level of attorneys bidding on contracts, nor did it consider the complexity or seriousness of the cases being bid on. The state simply let out contracts to the lowest bidder. The changes in the criminal justice system in the United States have now caused the Department of Justice to undertake an entirely new comprehensive national survey of indigent defence systems in order to evaluate and compare the effectiveness of services offered. One of the unsolved problems is the question of co-defendants whose interests collide; for example, where one seeks to do a deal and claim immunity in return for giving evidence against another. It simply is not possible for the same organisation to act for both defendants. No such research, consideration or consultation backs these proposals.

In the White Paper The Machinery of Justice there is reference to a single study that was carried out by an individual in 1997. There is nothing more. In my view these proposals are simply pulled out of the air as a good, money-saving wheeze. Much is made of the cost of defence legal aid. It is said that 1 per cent. takes 40 per cent. of the criminal legal aid funds in the Crown Court. That is not surprising; it is the complex, lengthy and serious cases which consume the largest resources of skill, both in advocacy and particularly in expert

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support services. In fact the Bar Council has agreed in most cases to accept graduated fees. That system is working well, although its effects have not been evaluated. But now these proposals involve the costs of a nationwide administrative organisation, coupled with complete uncertainty as to the extent to which its services will be chosen by the consumer--the arrested, accused defendant. Is that value for money? I do not think so. I beg to move.

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